Citation Nr: 0300229
Decision Date: 01/07/03 Archive Date: 01/15/03
DOCKET NO. 02-01 099 ) DATE
)
)
On appeal from the
Department of Veterans Affairs Regional Office in
Montgomery, Alabama
THE ISSUE
Entitlement to service connection for chronic obstructive
pulmonary disease (COPD) with bronchitis and asthma.
REPRESENTATION
Veteran represented by: The American Legion
ATTORNEY FOR THE BOARD
C. L. Mason, Senior Counsel
INTRODUCTION
The veteran served on active duty from 1965 to 1968.
This case comes to the Board of Veterans' Appeals (Board)
on appeal from a May 2001 rating decision of the
Department of Veterans Affairs (VA) Regional Office (RO)
in Montgomery, Alabama.
The Board notes that the Statement of the Case included
the issues of (1) Service connection for post-traumatic
stress disorder (PTSD); (2) Service connection for
allergic dermatitis due to Agent Orange exposure; (3)
Service connection for chronic obstructive pulmonary
disease (COPD) with bronchitis and asthma; and
(4) Entitlement to nonservice connected pension. The
veteran's VA Form 9 indicates by x mark that he was only
appealing the listed issues, which were service connection
for PTSD and COPD; the veteran also indicated that he
should be given nonservice connected pension. He did not
mention the issue of service connection for dermatitis.
The issues of entitlement to service connection for PTSD
and entitlement to pension were granted by the RO in March
2002. As this is full grant of benefits sought on these
issues, they are not before the Board for adjudication.
Therefore, the only issue remaining on appeal is that
listed on the first page of this decision. As the veteran
did not appeal his claim for service connection for
dermatitis, it is not before the Board on appeal. See
38 C.F.R. § 20.202 (2002).
The veteran requested and was scheduled to appear before a
Member of the Board at a hearing at the RO in September
2002; however, the veteran failed to report for this
hearing.
FINDING OF FACT
Competent evidence of a nexus between the veteran's
diagnosis of COPD with bronchitis and asthma and his
active service to include exposure to asbestos is not of
record.
CONCLUSION OF LAW
COPD with bronchitis and asthma was not incurred in or
aggravated by active service. 38 U.S.C.A. §§ 1110, 1154,
5103, 5103A, 5107 (West 1991 & Supp. 2002); 38 C.F.R.
§§ 3.303, 3.307, 3.309 (2002).
REASONS AND BASES FOR FINDINGS AND CONCLUSIONS
The veteran is seeking service connection for COPD with
bronchitis and asthma. He maintains that he was exposed to
asbestos while onboard ship and that this caused the
development of his current lung disorder.
Service connection may be granted for a disability
resulting from disease or injury incurred in or aggravated
by service. 38 U.S.C.A. §§ 1110, 1131 (West Supp. 2002);
38 C.F.R. § 3.303(a) (2002). For the showing of chronic
disease in service, there is required a combination of
manifestations sufficient to identify the disease entity
and sufficient observation to establish chronicity at the
time, as distinguished from merely isolated findings or a
diagnosis including the word "chronic." When the fact of
chronicity in service is not adequately supported, then a
showing of continuity after discharge is required to
support the claim. 38 C.F.R. § 3.303(b) (2002). Service
connection may be also granted for any disease diagnosed
after discharge, when all the evidence, including that
pertinent to service, establishes that the disease was
incurred in service. 38 C.F.R. § 3.303(d) (2002).
Service connection connotes many factors, but basically,
it means that the facts, as shown by evidence, establish
that a particular injury or disease resulting in
disability was incurred coincident with service. A
determination of service connection requires a finding of
the existence of a current disability and a determination
of a relationship between that disability and an injury or
disease in service. See Pond v. West, 12 Vet. App. 341
(1999); Watson v. Brown, 4 Vet. App. 309, 314 (1993).
The veteran's active duty included service in Vietnam
during the Vietnam era. On December 27, 2001, the
President signed into law the Veterans Education and
Benefits Expansion Act of 2001, Pub. L. No. 107-103(Dec.
27, 2001). Section 201 of this Act amends 38 U.S.C.
§ 1116 to provide a presumption of exposure to herbicides
for all veterans who served in Vietnam during the period
beginning on January 9, 1962 and ending on May 7, 1975.
Prior to December 27, 2001, the law required that the
veteran have a presumptive disease before exposure to
herbicides was presumed. See 38 U.S.C.A. § 1116(a)(3)
(West 1999 & Supp. 2002). This is clearly a liberalizing
provision and, as such will be applied in the present
case. See Karnas v. Derwinski, 1 Vet. App. 308 (1991).
If a veteran was exposed to an herbicide agent during
active military, naval, or air service, served in the
Republic of Vietnam during the period beginning on January
9, 1962, and ending on May 7, 1975, the following diseases
shall be service-connected, even though there is no record
of such disease during service, provided further that the
rebuttable presumption provisions of 38 U.S.C.A. § 1113
and 38 C.F.R. § 3.307(d) are also satisfied: chloracne or
other acneform disease consistent with chloracne;
Hodgkin's disease; multiple myeloma; non-Hodgkin's
lymphoma; acute and subacute peripheral neuropathy; PCT;
prostate cancer; respiratory cancers (cancer of the lung,
bronchus, larynx, or trachea); and soft- tissue sarcomas
(other than osteosarcoma, chondrosarcoma, Kaposi's
sarcoma, or mesothelioma). 38 C.F.R. § 3.309(e) (2002).
The Secretary of VA has determined that there is no
positive association between exposure to herbicides and
any other condition for which the Secretary has not
specifically determined that a presumption of service
connection is warranted. See Diseases Not Associated With
Exposure to Certain Herbicide Agents, 61 Fed. Reg. 41442,
41448 (1996). Nevertheless, the United States Court of
Appeals for the Federal Circuit (CAFC) has held that the
Veteran's Dioxin and Radiation Exposure Compensation
Standards (Radiation Compensation) Act, Pub. L. No. 98-
542, § 5, 98 Stat. 2725, 2727-29 (1984), does not preclude
a claimant from establishing service connection with proof
of direct causation. Combee v. Brown, 34 F.3d 1039, 1043
(Fed. Cir. 1994).
The veteran's service records show that he served onboard
the USS Skagit, which served in and around the waters of
Vietnam from August 1965 to May 1966. The veteran served
as an engine repairman. As the veteran had Vietnam
service, exposure to Agent Orange is presumed. "Service
in the Republic of Vietnam" includes service in the waters
offshore. 38 C.F.R. § 3.307(a)(6)(iii). (2002).
However, the veteran has not alleged that he served in
combat and the evidence of record does not indicate that
he served in combat. Thus, 38 U.S.C.A. § 1154(b) (West
1991) is not applicable in this case.
Service medical records show no complaints, findings, or
diagnoses of COPD with bronchitis and asthma during
service.
VA medical records including hospital summaries dated from
1992 to 2002 show chest x-ray findings and diagnoses of
acute bronchitis, bronchitis, asthma, COPD, and reactive
airway disease. These records show that the veteran was a
smoker, and had stopped smoking in 2001.
A November 1997 private medical record shows a diagnosis
of asthma.
At a January 2001 VA examination, the veteran reported
that he began experiencing shortness of breath with white
sputum in 1992. He reported that he probably had exposure
to asbestos when he worked onboard ship in service in
1965. The examiner noted that the veteran smoked up to 10
cigarettes per day. On evaluation, his chest was
described as somewhat emphysematous, but his lungs were
clear with no rales. Chest x-rays revealed no acute lung
disease. The diagnoses included asbestos exposure,
chronic obstructive pulmonary disease and chronic
bronchitis. Pulmonary function tests performed in
February 2001 showed COPD.
In statements, the veteran contended it was his opinion
that this respiratory disorder was result of his exposure
to asbestos during service. However, there is no evidence
of record that the veteran has specialized medical
knowledge, thus he is not competent to offer medical
opinion as to cause or etiology of the claimed disability.
See Grottveit v. Brown, 5 Vet. App. at 93 (1993); Espiritu
v. Derwinski, 2 Vet. App. at 494.
As set forth above, the veteran had service in Vietnam,
thus, the Board will also consider whether the veteran's
COPD with bronchitis and asthma resulted from his exposure
to Agent Orange.
Service medical records show no complaints, findings, or
treatment for COPD with bronchitis and asthma.
Additionally, both the veteran's statements and medical
records reveal that the first evidence of respiratory
complaints subsequent to service was in 1992, more than 20
years after service. Moreover, while VA and private
medical records contain diagnoses of COPD, asthma,
bronchitis, and reactive airway disease, no medical
professional has provided competent medical evidence
linking the veteran's COPD with bronchitis and asthma to
active service including exposure to asbestos or Agent
Orange.
The Board notes that the January 2001 VA examination
report contains a diagnosis of asbestos exposure.
However, it appears that this diagnosis was based on the
veteran's reported history of exposure to asbestos while
onboard ship during 1965, as the VA physician did not
provide any basis or rationale for this diagnosis. The
U.S. Court of Appeals for Veterans Claims (Court) has
determined that the history that the veteran provided does
not transform that history into medical evidence. See
LeShore v. Brown, 8 Vet. App. 406, 409 (1995).
There is no documentation of record that the veteran was
exposed to asbestos during service. Information of record
indicates that the USS Skagit was decommissioned in 1969,
sold in 1974, and broken up for scrap. Moreover,
subsequent medical records including VA hospital summaries
in 1992 and 1995 show no findings or diagnoses of COPD
with bronchitis and asthma related to asbestos.
Based on review of the evidence of record, the Board
concludes that the preponderance of the evidence is
against a finding that the veteran's COPD with bronchitis
and asthma began during service or resulted from exposure
to either asbestos or Agent Orange. Therefore, the claim
for service connection for COPD with bronchitis and asthma
is denied.
VCAA
There was a significant change in the law during the
pendency of this appeal. The Veterans Claims Assistance
Act of 2000 (VCAA), 38 U.S.C.A. §§ 5100, 5102, 5103,
5103A, 5107, 5126 (West Supp. 2002); 38 C.F.R. §§ 3.102,
3.156(a), 3.159, 3.326(a) (2002) redefined the obligations
of VA with respect to the duty to assist, and imposed on
VA certain notification requirements. The final
regulations implementing the VCAA were published on August
29, 2001, and they apply to most claims for benefits
received by VA on or after November 9, 2000, as well as
any claim not decided as of that date, such as the one in
the present case. 38 C.F.R. § 3.159.
First, VA has a duty to notify the veteran of any
information and evidence needed to substantiate and
complete a claim. 38 U.S.C.A. §§ 5102 and 5103; 38 C.F.R.
§ 3.159(b). There is no issue as to providing an
appropriate application form or completeness of the
application in this case. In the circumstances of this
case, the veteran has been advised of the applicable laws
and regulations, and the evidence needed to substantiate
his claim by a March 2002 supplemental statement of the
case. In particular, the veteran was notified that VA
would obtain all relevant evidence in the custody of a
federal department or agency, including VA, Vet Center,
service department, Social Security, and other federal
agencies. He was advised that it was his responsibility
to either send medical treatment records from his private
physician regarding treatment for his claimed
disabilities, or to provide a properly executed release so
that VA could request the records for him. The veteran
was also asked to advise VA if there were any other
information or evidence he considered relevant to his
claim so that VA could help by getting that evidence. The
veteran submitted copies of private and VA medical
records. Thus, VA's duty to notify has been fulfilled.
See Quartuccio v. Principi, 16 Vet. App. 183 (2002).
Secondly, VA has a duty to assist the veteran in obtaining
evidence necessary to substantiate the claim. 38 U.S.C.A.
§ 5103A (West Supp. 2002); 38 C.F.R. § 3.159(c)). The
record shows that the RO has secured the veteran's service
medical records, VA clinical records and examination
reports, and private medical records.
In view of the foregoing, the Board finds that all
reasonable efforts to secure and develop the evidence that
is necessary for an equitable disposition of the matter on
appeal have been made by the agency of original
jurisdiction. Every possible avenue of assistance has
been explored, and the veteran has had ample notice of
what might be required or helpful to establish his claim.
See Soyini v. Derwinski, 1 Vet. App. 540, 546 (1991)
(strict adherence to requirements in the law does not
dictate an unquestioning, blind adherence in the face of
overwhelming evidence in support of the result in a
particular case; such adherence would result in
unnecessarily imposing additional burdens on VA with no
benefit flowing to the veteran). The Board concludes,
therefore, that a decision on the merits at this time does
not violate the VCAA, nor prejudice the veteran under
Bernard v. Brown, 4 Vet. App. 384 (1993).
ORDER
Service connection for COPD with bronchitis and asthma is
denied.
MARY GALLAGHER
Member, Board of Veterans' Appeals
IMPORTANT NOTICE: We have attached a VA Form 4597 that tells
you what steps you can take if you disagree with our
decision. We are in the process of updating the form to
reflect changes in the law effective on December 27, 2001.
See the Veterans Education and Benefits Expansion Act of
2001, Pub. L. No. 107-103, 115 Stat. 976 (2001). In the
meanwhile, please note these important corrections to the
advice in the form:
? These changes apply to the section entitled "Appeal
to the United States Court of Appeals for Veterans
Claims." (1) A "Notice of Disagreement filed on or
after November 18, 1988" is no longer required to
appeal to the Court. (2) You are no longer required
to file a copy of your Notice of Appeal with VA's
General Counsel.
? In the section entitled "Representation before VA,"
filing a "Notice of Disagreement with respect to the
claim on or after November 18, 1988" is no longer a
condition for an attorney-at-law or a VA accredited
agent to charge you a fee for representing you.